7 2 Garcia V Executive Secretary

SUPREME COURT REPORTS ANNOTATED VOLUME 677 9/23/21, 8:18 PM
G.R. No. 198554. July 30, 2012.*

MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.),
petitioner, vs. THE EXECUTIVE SECRETARY,
representing the OFFICE OF THE PRESIDENT; THE
SECRETARY OF NATIONAL DEFENSE VOLTAIRE T.
GAZMIN; THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR.,
and LT. GEN. GAUDENCIO S. PANGILINAN, AFP (RET.),
DIRECTOR, BUREAU OF CORRECTIONS, respondents.
Criminal Procedure; Jurisdiction; Well-settled is the rule that

jurisdiction once acquired is not lost upon the instance of the parties
but continues until the case is terminated.·It is indisputable that
petitioner was an officer in the active service of the AFP in March
2003 and 2004, when the alleged violations were committed. The
charges were filed on October 27, 2004 and he was arraigned on
November 16, 2004. Clearly, from the time the violations were com-
_______________
* THIRD DIVISION.
751
VOL. 677, JULY 30, 2012 751
Garcia vs. Executive Secretary
mitted until the time petitioner was arraigned, the General Court
Martial had jurisdiction over the case. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the
parties but continues until the case is terminated. Therefore,
petitionerÊs retirement on November 18, 2004 did not divest the
General Court Martial of its jurisdiction.
https://central.com.ph/sfsreader/session/0000017c129b8d88162119c6000d00d40059004a/p/ASL446/?username=Guest Page 1 of 37
Same; Same; Courts; Courts Martial; A court-martial case is a

criminal case and the General Court Martial is a „court‰ akin to any
other courts.·In Marcos v. Chief of Staff, Armed Forces of the
Philippines, 89 Phil, 246 (1951), this Court ruled that a court-
martial case is a criminal case and the General Court Martial is a
„court‰ akin to any other courts. In the same case, this Court
clarified as to what constitutes the words „any court‰ used in
Section 17 of the 1935 Constitution prohibiting members of
Congress to appear as counsel in any criminal case in which an
officer or employee of the Government is accused of an offense
committed in relation to his office.
Same; Same; Same; The General Court Martial is a court
within the strictest sense of the word and acts as a criminal court.·
The General Court Martial is a court within the strictest sense of
the word and acts as a criminal court. On that premise, certain
provisions of the Revised Penal Code, insofar as those that are not
provided in the Articles of War and the Manual for Courts-Martial,
can be supplementary. Under Article 10 of the Revised Penal Code:
Art. 10. Offenses not subject to the provisions of this Code.·Offenses
which are or in the future may be punishable under special laws are
not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially
provide the contrary.
Constitutional Law; Equal Protection of the Law; The
application of Article 29 of the Revised Penal Code in the Articles of
War is in accordance with the Equal Protection Clause of the 1987
Constitution; The purpose of the equal protection clause is to secure
every person within a stateÊs jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of
a statute or by its improper execution through the stateÊs duly-
constituted authorities.·The application of Article 29 of the Revised
Penal Code in the Articles of War is in accordance with the Equal
Protection Clause of the 1987 Constitution. According to a long line
of decisions,
752
752 SUPREME COURT REPORTS ANNOTATED
equal protection simply requires that all persons or things similarly

situated should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and institutions
to treat similarly situated individuals in a similar manner. The
purpose of the equal protection clause is to secure every person
within a stateÊs jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a
statute or by its improper execution through the stateÊs duly-
constituted authorities. In other words, the concept of equal justice
under the law requires the state to govern impartially, and it may
not draw distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective. It, however,
does not require the universal application of the laws to all persons
or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification.
Same; Right to Speedy Disposition of Cases; In determining
whether or not the right to the speedy disposition of cases has been
violated, this Court has laid down the following guidelines: (1) the
length of the delay; (2) the reasons for such delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice
caused by the delay.·No less than our Constitution guarantees the
right not just to a speedy trial but to the speedy disposition of cases.
However, it needs to be underscored that speedy disposition is a
relative and flexible concept. A mere mathematical reckoning of the
time involved is not sufficient. Particular regard must be taken of
the facts and circumstances peculiar to each case. In determining
whether or not the right to the speedy disposition of cases has been
violated, this Court has laid down the following guidelines: (1) the
length of the delay; (2) the reasons for such delay; (3) the assertion
or failure to assert such right by the accused; and (4) the prejudice
caused by the delay.
SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
The facts are stated in the opinion of the Court.
De Jesus, Manimtim & Associates for petitioner.
The Solicitor General for respondents.
753
VOL. 677, JULY 30, 2012 753
PERALTA, J.:
For resolution of this Court is the Petition for Certiorari
dated September 29, 2011 under Rule 65, Section 1 of the
Revised Rules of Civil Procedure which seeks to annul and
set aside the Confirmation of Sentence dated September 9,
2011, promulgated by the Office of the President.
The facts, as culled from the records, are the following:
On October 13, 2004, the Provost Martial General of the
Armed Forces of the Philippines (AFP), Col. Henry A.
Galarpe, by command of Vice-Admiral De Los Reyes, issued
a Restriction to Quarters1 containing the following:
„1. Pursuant to Article of War 70 and the directive of the Acting

Chief of Staff, AFP to the undersigned dtd 12 October 2004, you are
hereby placed under Restriction to Quarters under guard pending
investigation of your case.
2. You are further advised that you are not allowed to leave your
quarters without the expressed permission from the Acting Chief of
Staff, AFP.
3. In case you need immediate medical attention or required by
the circumstance to be confined in a hospital, you shall likewise be
under guard.‰
Thereafter, a Charge Sheet dated October 27, 2004 was

filed with the Special General Court Martial NR 2 presided
by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.),
enumerating the following violations allegedly committed
by petitioner:
„CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR

(CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS
FLORES GARCIA 0-5820 ARMED FORCES OF THE
PHILIPPINES, person subject to military law, did, on or about 16
March 2004, knowingly, wrongfully and unlawfully fail to
disclose/declare
_______________
1 Rollo, p. 73.
754

all his existing assets in his Sworn Statement of Assets and

Liabilities and Net [Worth] for the year 2003 as required by
Republic Act No. 3019, as amended in relation to Republic Act 6713,
such as the following: cash holdings with the Armed Forces Police
Savings and Loans Association, Inc. (AFPSLAI) in the amount of six
million five hundred [thousand] pesos (P6,500,000.00); cash
dividend received from AFPSLAI from June 2003 to December 2003
in the amount of one million three hundred sixty-five thousand
pesos (P1,365,000.00); dollar peso deposits with Land Bank of the
Philippines, Allied Banking Corporation, Banco de Oro Universal
Bank, Bank of Philippine Islands, United Coconut PlanterÊs Bank
and PlanterÊs Development Bank; motor vehicles registered under
his and his [wifeÊs] names such as 1998 Toyota Hilux Utility Vehicle
with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota
Previa with Plate Nr. UDS195, 1997 Honda Civic Car with Plate Nr.
FEC 134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ 582 and
2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct
unbecoming an officer and gentleman.
March 2003, knowingly, wrongfully and unlawfully fail to
disclose/declare all his existing assets in his Sworn Statement of
Assets and Liabilities and Net worth for the year 2002 as required
by Republic Act No. 3019, as amended in relation to Republic Act
6713, such as the following: his cash holdings with the Armed
Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the
amount of six million five hundred [thousand] pesos
(P6,500,000.00); cash dividend received form AFPSLAI in June
2002 and December 2002 in the total amount of one million four
hundred thirty-five thousand pesos (P1,435,000.00), dollar and peso
deposits with Land Bank of the Philippines, Allied Banking
Corporation, Banco de Oro Universal Bank, Bank of the Philippine
Islands, United Coconut PlanterÊs Bank and PlanterÊs Development
Bank; motor vehicles registered under his and his wife[Âs] names
such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843,
Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr.
UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997
Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota
RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming

an officer and gentleman.
755
VOL. 677, JULY 30, 2012 755


PHILIPPINES, person subject to military law, did, while in the
active military service of the Armed Forces of the Philippines,
knowingly, wrongfully and unlawfully violate his solemn oath as a
military officer to uphold the Constitution and serve the people with
utmost loyalty by acquiring and holding the status of an immigrant/
permanent residence of the United States of America in violation of
the State policy governing public officers, thereby causing dishonor
and disrespect to the military professional and seriously
compromises his position as an officer and exhibits him as morally
unworthy to remain in the honorable profession of arms.
CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR
(CONDUCT PREJUDICIAL TO GOOD ORDER AND MILITARY
DISCIPLINE).
March 2004, knowingly, wrongfully and unlawfully make
untruthful statements under oath of his true assets in his
Statement of Assets and Liabilities and Net worth for the year 2003
as required by Republic Act No. 3019, as amended in relation to
Republic Act 6713, conduct prejudicial to good order and military
discipline.
SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS
March 2003, knowingly, wrongfully and unlawfully make
untruthful statements under oath of his true assts in his Statement
of Assets and Liabilities and Net worth for the year 2002 as
required by Republic Act No. 3019, as amended in relation to
Republic Act 6713, conduct prejudicial to good order and military
discipline.
Petitioner, upon arraignment on November 16, 2004,

pleaded not guilty on all the charges.
The Office of the Chief of Staff, through a Memorandum2
dated November 18, 2004, directed the transfer of
confinement of petitioner from his quarters at Camp
General Emilio
_______________
2 Id., at p. 78.
756

Aguinaldo to the ISAFP Detention Center. On the same

day, petitioner, having reached the age of fifty-six (56),
compulsorily retired from military service after availing of
the provisions of Presidential Decree (P.D.) No. 1650,3
amending Sections 3 and 5 of P.D. 1638, which establishes
a system of retirement for military personnel of the Armed
Forces of the Philippines.
Pursuant to a Resolution4 dated June 1, 2005 of the
Second Division of the Sandiganbayan, petitioner was
transferred from the ISAFP Detention Center to the Camp
Crame Custodial Detention Center.
After trial, at the Special General Court Martial No. 2,
on December 2, 2005, the findings or the After-Trial
Report5 of the same court was read to the petitioner. The
report contains the following verdict and sentence:
„MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in

closed session upon secret written ballot 2/3 of all the members
_______________
3 Sec. 2. Section 5 of Presidential Decree No. 1638 is hereby amended to
read as follows:
Sec. 5 (a). Upon attaining fifty-six (56) years of age or upon
accumulation of thirty (30) years of satisfactory active service,
whichever is later, an officer or enlisted man shall be compulsorily retired;
Provided, That such officer or enlisted-man who shall have attained fifty-six
(56) years of age with at least twenty (20) years of active service shall be
allowed to complete thirty (30) years of service but not beyond his sixtieth
(60th) birthday, Provided, however, That such military personnel compulsorily
retiring by age shall have at least twenty (20) years of active service: Provided,
further, That the compulsory retirement of an officer serving in a statutory
position shall be deferred until completion of the tour of duty prescribed by law;
and, Provided, finally, That the active service of military personnel may be
extended by the President, if in his opinion, such continued military service is
for the good of the service. (Emphasis supplied.)
4 Rollo, pp. 80-81.
5 Id., at p. 82.
757
VOL. 677, JULY 30, 2012 757

present at the time the voting was taken concurring the following
findings. Finds you:
On Specification 1 of Charge 1·Guilty except the words
dollar deposits with Land Bank of the Phils, dollar peso deposits
with Allied Bank, Banco de Oro, Universal Bank, Bank of the
Philippine Island, United Coconut Planters Bank and Planters
Development Bank.
On Specification 2 of Charge 1·Guilty except the words
dollar deposits with Land Bank of the Phils, dollar peso deposits
with Allied Bank, Banco de Oro, Universal Bank, Bank of the
Philippine Island, United Coconut Planters Bank and Planters
Development Bank.
On Specification 3 of Charge 1 – Guilty
And again in closed session upon secret written ballot 2/3 all the
members are present at the time the votes was taken concurrently
sentences you to be dishonorably [discharged] from the
service, to forfeit all pay and allowances due and to become
due and to be confined at hard labor at such place the
reviewing authority may direct for a period of two (2) years.
So ordered.‰ (Emphases supplied)
Afterwards, in a document6 dated March 27, 2006, the

Staff Judge Advocate stated the following recommended
action:
IV. RECOMMENDED ACTION:
The court, after evaluating the evidence, found accused: GUILTY
on Charge 1, GUILTY on Specification 1 on Charge 1·except the
words dollar deposits with Land Bank of the Philippines, dollar and
peso deposits with Allied Banking Corporation, Banco de Oro
Universal Bank, Bank of the Philippine Islands, United Coconut
PlanterÊs Bank and PlanterÊs Development Bank; GUILTY on
Charge 1, Specification 2 except the words dollar deposits with
Land Bank of the Philip-
_______________
6 Staff Judge Advocate Review, id., at pp. 83-98.
758

pines, dollar and peso deposits with Allied Banking Corporation,

Banco de Oro Universal Bank, Bank of the Philippine Islands,
United Coconut Planters Bank and PlanterÊs Development Bank;
GUILTY on Specification 3 of Charge 1; GUILTY on Charge 2 and
all its specifications. The sentence imposed by the Special GCM is to
be dishonorably discharged from the service, to forfeit all pay and
allowances due and to become due; and to be confined at hard labor
at such place the reviewing authority may direct for a period of two
(2) years. As it is, the sentence is proper and legal. Recommend that
the sentence be approved. The PNP custodial facility in Camp
Crame, Quezon City, is the appropriate place of confinement. The
period of confinement from 18 October 2004 shall be credited in his
favor and deducted from the two (2) years to which the accused was
sentenced. Thus, confinement will expire on 18 October 2006.
Considering that the period left not served is less than one (1) year,
confinement at the National Penitentiary is no longer appropriate.
4. To carry this recommendation into effect, a draft „ACTION OF
THE REVIEWING AUTHORITY‰ is hereto attached.‰
In an undated document,7 the AFP Board of Military

Review recommended the following action:
8. RECOMMENDED ACTION:
A. Only so much of the sentence as provides for the mandatory

penalty of dismissal from the military service and forfeiture of pay
and allowances due and to become due for the offenses of violation
of AW 96 (Conduct Unbecoming an Officer and a Gentleman) and
for violation of AW 97 (Conduct Prejudicial to Good Order and
Military Discipline) be imposed upon the Accused.
B. The records of the instant case should be forwarded to the
President thru the Chief of Staff and the Secretary of National
Defense, for final review pursuant to AW 47, the Accused herein
being a General Officer whose case needs confirmation by the
President.
C. To effectuate the foregoing, attached for CSAFPÊs
signature/approval is a proposed 1st Indorsement to the President,
thru the Secretary of National Defense, recommending approval of
the attached prepared „ACTION OF THE PRESIDENT.‰
_______________
7 Rollo, pp. 102-114.
759
VOL. 677, JULY 30, 2012 759

After six (6) years and two (2) months of preventive

confinement, on December 16, 2010, petitioner was
released from the Camp Crame Detention Center.8
The Office of the President, or the President as
Commander-in-Chief of the AFP and acting as the
Confirming Authority under the Articles of War, confirmed
the sentence imposed by the Court Martial against
petitioner. The Confirmation of Sentence,9 reads in part:
„NOW, THEREFORE, I, BENIGNO S. AQUINO III, the

President as Commander-in-Chief of the Armed Forces of the
Philippines, do hereby confirm the sentence imposed by the Court
Martial in the case of People of the Philippines versus Major General
Carlos Flores Garcia AFP:
a) To be dishonorable discharged from the service;
b) To forfeit all pay and allowances due and to become due;
and
c) To be confined for a period of two (2) years in a
penitentiary.
FURTHER, pursuant to the 48th and 49th Articles of War, the
sentence on Major General Carlos Flores Garcia AFP shall not be
remitted/mitigated by any previous confinement. Major General
Carlos Flores Garcia AFP shall serve the foregoing sentence
effective on this date.
DONE, in the City of Manila, this 9th day of September, in
the year of our Lord, Two Thousand and Eleven.‰
Consequently, on September 15, 2011, respondent

Secretary of National Defense Voltaire T. Gazmin, issued a
Memorandum10 to the Chief of Staff, AFP for strict
implementation, the Confirmation of Sentence in the Court
Martial Case of
_______________
8 Order of Discharge dated December 16, 2010 by the
Sandiganbayan Second Division, Id., at p. 115.
9 Rollo, pp. 70-72. (Emphasis supplied.)
10 Id., at p. 116.
760

People of the Philippines Versus Major General Carlos

Flores Garcia AFP.
On September 16, 2011, petitioner was arrested and
detained, and continues to be detained at the National
Penitentiary, Maximum Security, Bureau of Corrections,
Muntinlupa City.11
Aggrieved, petitioner filed with this Court the present
petition for certiorari and petition for habeas corpus,
alternatively. However, this Court, in its Resolution12
dated October 10, 2011, denied the petition for habeas
corpus. Petitioner filed a motion for reconsideration13
dated November 15, 2011, but was denied14 by this Court
on December 12, 2011.
Petitioner enumerates the following grounds to support
his petition:
GROUNDS
A.
THE JURISDICTION OF THE GENERAL COURT MARTIAL
CEASED IPSO FACTO UPON THE RETIREMENT OF
PETITIONER, FOR WHICH REASON THE OFFICE OF THE
PRESIDENT ACTED WITHOUT JURISDICTION IN ISSUING
THE CONFIRMATION OF SENTENCE, AND PETITIONERÊS
ARREST AND CONFINEMENT PURSUANT THERETO IS
ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS
CORPUS.
B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT
PETITIONER REMAINED AMENABLE TO COURT MARTIAL
JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF
THE PRESIDENT ACTED WITH GRAVE ABUSE OF
DISCRETION IN IMPOSING THE SENTENCE OF TWO (2)
YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR
WHICH REASON
_______________
11 Id., at p. 23.
12 Id., at pp. 122-123.
13 Id., at pp. 215-238.
14 Id., at p. 239.
761
VOL. 677, JULY 30, 2012 761

PETITIONERÊS ARREST AND CONFINEMENT IS ILLEGAL,

THUS WARRANTING THE WRIT OF HABEAS CORPUS.
C.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE
PENALTY OF TWO (2) YEARS CONFINEMENT MAY BE
IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL
AND FORFEITURE, THE SENTENCE HAD BEEN FULLY
SERVED IN VIEW OF PETITIONERÊS PREVENTIVE
CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE,
AND THE OFFICE OF THE PRESIDENT HAS NO AUTHORITY
TO REPUDIATE SAID SERVICE OF SENTENCE, FOR WHICH
REASON PETITIONERÊS ARREST AND CONFINEMENT
DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS

WARRANTING THE WRIT OF HABEAS CORPUS.15
In view of the earlier resolution of this Court denying

petitionerÊs petition for habeas corpus, the above grounds
are rendered moot and academic. Thus, the only issue in
this petition for certiorari under Rule 65 of the Revised
Rules of Civil Procedure, which was properly filed with this
Court, is whether the Office of the President acted with
grave abuse of discretion, amounting to lack or excess of
jurisdiction, in issuing the Confirmation of Sentence dated
September 9, 2011.
In its Comment16 dated October 27, 2011, the Office of
the Solicitor General (OSG) lists the following counter-
arguments:
I.
PETITIONERÊS DIRECT RECOURSE TO THE HONORABLE
COURT VIOLATES THE DOCTRINE OF HIERARCHY OF
COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY
DISMISSED.
_______________
15 Id., at pp. 23-25.
16 Id., at pp. 124-214.
762

II.
THE GENERAL COURT MARTIAL RETAINED JURISDICTION
OVER PETITIONER DESPITE HIS RETIREMENT DURING THE
PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE
THE SAID TRIBUNALÊS JURISDICTION HAD ALREADY FULLY
ATTACHED PRIOR TO PETITIONERÊS RETIREMENT.
III.
THE CONFIRMATION ISSUED BY THE OFFICE OF THE
PRESIDENT DIRECTING PETITIONER TO BE CONFINED FOR
TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A.
NO. 408 AND EXECUTIVE ORDER NO. 178, PURSUANT TO
THE PRESIDENTÊS CONSTITUTIONAL AUTHORITY AS THE
COMMANDER-IN-CHIEF OF THE AFP.

IV.
PETITIONERÊS RIGHT TO A SPEEDY DISPOSITION OF HIS
CASE WAS NOT VIOLATED IN THIS CASE.
V.
THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS
CONFINEMENT ON PETITIONER BY THE GCM, AND AS
CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS
VALID.
VI.
ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH
GRAVE ABUSE OF DISCRETION IN ISSUING AND
IMPLEMENTING THE CONFIRMATION OF SENTENCE.17
Petitioner, in his Reply18 dated January 20, 2012,

disagreed with the arguments raised by the OSG due to the
following:
(A)
THE CONFIRMATION OF THE COURT MARTIAL SENTENCE
IS AN ACT BY THE PRESIDENT, AS THE COMMANDER-IN-
CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE
_______________
17 Id., at pp. 137-138.
18 Id., at pp. 240-272.
763
VOL. 677, JULY 30, 2012 763

BRANCH. THEREFORE, THE HONORABLE COURT IS THE

ONLY APPROPRIATE COURT WHERE HIS ACT MAY BE
IMPUGNED, AND NOT IN THE LOWER COURTS, I.E.,
REGIONAL TRIAL COURT („RTC‰) OR THE COURT OF
APPEALS („CA‰), AS THE OSG ERRONEOUSLY POSTULATES.
(B)
ALTHOUGH THE GENERAL COURT MARTIAL („GCM‰)
RETAINED JURISDICTION „OVER THE PERSON‰ OF
PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED
FORCES OF THE PHILIPPINES (ÂAFP‰), HOWEVER, HIS
RETIREMENT, CONTRARY TO THE STAND OF THE OSG,
SEVERED HIS „JURAL RELATIONSHIP‰ WITH THE MILITARY,

THEREBY PLACING HIM BEYOND THE SUBSTANTIVE
REACH OF THE AFPÊS COURT MARTIAL JURISDICTION.
(C)
UNDER ART. 29, REVISED PENAL CODE („RPC‰),
PETITIONERÊS COURT MARTIAL SENTENCE OF TWO (2)
YEARS INCARCERATION HAD ALREADY BEEN SERVED IN
FULL SINCE HE HAD ALREADY SUFFERED PREVENTIVE
IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE THE
SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT
THE PRESIDENT HAD NO MORE JURISDICTION WHEN HE
CONFIRMED IT, THEREBY RENDERING THE
„CONFIRMATION OF SENTENCE‰ A PATENT NULLITY, AND,
CONSEQUENTLY, INVALIDATING THE OSGÊS POSITION THAT
THE PRESIDENT STILL HAD JURISDICTION WHEN HE
CONFIRMED THE SENTENCE.19
Petitioner raises the issue of the jurisdiction of the

General Court Martial to try his case. According to him,
the said jurisdiction ceased ipso facto upon his compulsory
retirement. Thus, he insists that the Office of the President
had acted without jurisdiction in issuing the confirmation
of his sentence.
This Court finds the above argument bereft of merit.
_______________
19 Id., at pp. 240-241.
764

Article 2 of the Articles of War20 circumscribes the

jurisdiction of military law over persons subject thereto, to
wit:
„Art. 2. Persons Subject to Military Law.·The following persons

are subject to these articles and shall be understood as included in
the term „any person subject to military law‰ or „persons subject to
military law,‰ whenever used in these articles:
(a) All officers and soldiers in the active service of the
Armed Forces of the Philippines or of the Philippine

Constabulary; all members of the reserve force, from the
dates of their call to active duty and while on such active
duty; all trainees undergoing military instructions; and all
other persons lawfully called, drafted, or ordered into, or to
duty or for training in, the said service, from the dates they
are required by the terms of the call, draft, or order to obey
the same;
(b) Cadets, flying cadets, and probationary second
lieutenants;
(c) All retainers to the camp and all persons accompanying
or serving with the Armed Forces of the Philippines in the
field in time of war or when martial law is declared though
not otherwise subject to these articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).‰
It is indisputable that petitioner was an officer in the

active service of the AFP in March 2003 and 2004, when
the alleged violations were committed. The charges were
filed on October 27, 2004 and he was arraigned on
November 16, 2004. Clearly, from the time the violations
were committed until the time petitioner was arraigned,
the General Court Martial had jurisdiction over the case.
Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of
_______________
20 Commonwealth Act No. 408, as amended.
765
VOL. 677, JULY 30, 2012 765

the parties but continues until the case is terminated.21

Therefore, petitionerÊs retirement on November 18, 2004
did not divest the General Court Martial of its jurisdiction.
In B/Gen. (Ret.) Francisco V. Gudani, et al. v. Lt./Gen.
Generoso Senga, et al.,22 this Court ruled that:
„This point was settled against Gen. GudaniÊs position in
Abadilla v. Ramos, where the Court declared that an officer

whose name was dropped from the roll of officers cannot be
considered to be outside the jurisdiction of military
authorities when military justice proceedings were initiated
against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his
case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of
Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it
is retained up to the end of the proceedings against Colonel
Abadilla. Well-settled is the rule that jurisdiction once
acquired is not lost upon the instance of the parties but
continues until the case is terminated.
Citing Colonel WinthropÊs treatise on Military Law, the
Court further stated:
We have gone through the treatise of Colonel Winthrop
and We find the following passage which goes against the
contention of the petitioners, viz.·
3. Offenders in general·Attaching of jurisdiction. It has
further been held, and is now settled law, in regard to
military offenders in general, that if the military jurisdiction
has once duly attached to them previous to the date of the
termination of their legal period of service, they may be
brought to trial by court-martial after that date, their
discharge being meanwhile withheld. This principle has
mostly been applied to cases where the offense was
committed just prior to the end of the
_______________
21 Abadilla v. Ramos, No. L-79173, December 7, 1987, 156 SCRA 92, 102.
22 G.R. No. 170165, August 15, 2006, 498 SCRA 671.
766

term. In such cases the interests of discipline clearly forbid

that the offender should go unpunished. It is held therefore
that if before the day on which his service legally terminates
and his right to a discharge is complete, proceedings with a
view to trial are commenced against him·as by arrest or the

service of charges,·the military jurisdiction will fully attach
and once attached may be continued by a trial by court-
martial ordered and held after the end of the term of the
enlistment of the accused x x x
Thus, military jurisdiction has fully attached to Gen.
Gudani inasmuch as both the acts complained of and the
initiation of the proceedings against him occurred before he
compulsorily retired on 4 October 2005. We see no reason to
unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as
amended, „[a]n officer or enlisted man carried in the retired
list [of the Armed Forces of the Philippines] shall be subject
to the Articles of War x x x‰ To this citation, petitioners do not
offer any response, and in fact have excluded the matter of
Gen. GudaniÊs retirement as an issue in their subsequent
memorandum.‰23
It is also apt to mention that under Executive Order No.

178, or the Manual for Courts-Martial, AFP, the
jurisdiction of courts-martial over officers, cadets, soldiers,
and other military personnel in the event of discharge or
other separation from the service, and the exceptions
thereto, is defined thus:
„10. COURT-MARTIAL·Jurisdiction in general·Termination·
General Rules·The general rule is that court-martial jurisdiction
over officers, cadets, soldiers and others in the military service of
the Philippines ceases on discharge or other separation from such
service, and that jurisdiction as to any offense committed during a
period of service thus terminated is not revived by a reentry into
the military service.
Exceptions·To this general rule there are, however, some
exceptions, among them the following:
_______________
23 Id., at pp. 692-693. (Citations omitted)
767
VOL. 677, JULY 30, 2012 767

xxxx
In certain case, where the personÊs discharge or other
separation does not interrupt his status as a person belonging
to the general category of persons subject to military law,
court-martial jurisdiction does not terminate. Thus, where an
officer holding a reserve commission is discharged from said
commission by reason of acceptance of a commission in the
Regular Force, there being no interval between services
under the respective commissions, there is no terminating
of the officerÊs military status, but merely the
accomplishment of a change in his status from that of a
reserve to that of a regular officer, and that court-martial
jurisdiction to try him for an offense (striking enlisted men
for example) committed prior to the discharge is not
terminated by the discharge. So also, where a dishonorable
discharged general prisoner is tried for an offense
committed while a soldier and prior to his
dishonorable discharge, such discharge does not
terminate his amenability to trial for the offense.‰
(Emphases supplied.)
Petitioner also asserts that the General Court MartialÊs

continuing jurisdiction over him despite his retirement
holds true only if the charge against him involves fraud,
embezzlement or misappropriation of public funds citing
this CourtÊs ruling in De la Paz v. Alcaraz, et al.24 and
Martin v. Ver.25 However, this is not true. The OSG is
correct in stating that in De la Paz,26 military jurisdiction
over the officer who reverted to inactive status was
sustained by this Court because the violation involved
misappropriation of public funds committed while he was
still in the active military service, while in Martin,27
military jurisdiction was affirmed because the violation
pertained to illegal disposal of military property. Both cited
cases centered on the nature of the offenses committed by
the military personnel involved, justifying the exer-
_______________
24 99 Phil. 130 (1956).
25 G.R. No. L-62810, July 25, 1983, 123 SCRA 745.
26 Supra note 24.
27 Supra note 25.
768

cise of jurisdiction by the courts-martial. On the other

hand, in the present case, the continuing military
jurisdiction is based on prior attachment of jurisdiction on
the military court before petitionerÊs compulsory
retirement. This continuing jurisdiction is provided under
Section 1 of P.D. 1850,28 as amended, thus:
„Section 1. Court Martial Jurisdiction over Integrated National

Police and Members of the Armed Forces.·Any provision of law to
the contrary notwithstanding·(a) uniformed members of the
Integrated National Police who commit any crime or offense
cognizable by the civil courts shall henceforth be exclusively tried
by courts-martial pursuant to and in accordance with
Commonwealth Act No. 408, as amended, otherwise known as the
Articles of War; (b) all persons subject to military law under article
2 of the aforecited Articles of War who commit any crime or offense
shall be exclusively tried by courts-martial or their case disposed of
under the said Articles of War; Provided, that, in either of the
aforementioned situations, the case shall be disposed of or
tried by the proper civil or judicial authorities when court-
martial jurisdiction over the offense has prescribed under
Article 38 of Commonwealth Act Numbered 408, as amended,
or court-martial jurisdiction over the person of the accused
military or Integrated National Police personnel can no
longer be exercised by virtue of their separation from the
active service without jurisdiction having duly attached
beforehand unless otherwise provided by law: Provided
further, that the President may, in the interest of justice, order or
direct, at any time before arraignment, that a particular case be
tried by the appropriate civil court.‰ (Emphasis supplied.)
Having established the jurisdiction of the General Court

Martial over the case and the person of the petitioner, the
President, as Commander-in-Chief, therefore acquired the
_______________
28 PROVIDING FOR THE TRIAL BY COURTS-MARTIAL OF MEMBERS OF THE
INTEGRATED NATIONAL POLICE AND FURTHER DEFINING THE JURISDICTION OF
COURTS MARTIAL OVER MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES.
769
VOL. 677, JULY 30, 2012 769

jurisdiction to confirm petitionerÊs sentence as mandated

under Article 47 of the Articles of War, which states:
„Article 47. Confirmation–When Required.·In addition to the

approval required by article forty-five, confirmation by the
President is required in the following cases before the sentence of a
court-martial is carried into execution, namely:
(a) Any sentence respecting a general officer;
(b) Any sentence extending to the dismissal of an officer
except that in time of war a sentence extending to the
dismissal of an officer below the grade of brigadier general
may be carried into execution upon confirmation by the
commanding general of the Army in the field;
(c) Any sentence extending to the suspension or dismissal
of a cadet, probationary second lieutenant; and
(d) Any sentence of death, except in the case of persons
convicted in time of war, of murder, mutiny, desertion, or as
spies, and in such excepted cases of sentence of death may be
carried into execution, subject to the provisions of Article 50,
upon confirmation by the commanding general of the Army in
the said field.
When the authority competent to confirm the sentence has
already acted as the approving authority no additional
confirmation by him is necessary.‰ (As amended by Republic
Act No. 242). (Emphasis supplied.)
In connection therewith, petitioner argues that the

confirmation issued by the Office of the President directing
him to be confined for two (2) years in the penitentiary had
already been fully served in view of his preventive
confinement which had exceeded two (2) years. Therefore,
according to him, the Office of the President no longer has
the authority to order his confinement in a penitentiary. On
the other hand, the OSG opines that petitioner cannot
legally demand the deduction of his preventive confinement

in the service of his imposed two-year confinement in a
penitentiary, because unlike our Re-
770

vised Penal Code29 which specifically mandates that the

period of preventive imprisonment of the accused shall be
deducted from the term of his imprisonment, the Articles of
War and/or the Manual for Courts-Martial do not provide
for the same deduction in the execution of the sentence
imposed by the General Court Martial as confirmed by the
President in appropriate cases.
On the above matter, this Court finds the argument
raised by the OSG unmeritorious and finds logic in the
assertion of petitioner that Article 29 of the Revised Penal
Code can be made applicable in the present case.
_______________
29 Art. 29. Period of preventive imprisonment deducted from term of
imprisonment.·Offenders who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting
of deprivation of liberty, with the full time during which they have
undergone preventive imprisonment, if the detention prisoner agrees
voluntarily in writing to abide by the same disciplinary rules imposed
upon convicted prisoners, except in the following cases:
1. When they are recidivists or have been convicted previously
twice or more times of any crime; and
2. When upon being summoned for the execution of their
sentence they have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be credited
in the service of his sentence with four-fifths of the time during which he
has undergone preventive imprisonment (As amended by Republic Act
6127, June 17, 1970).
Whenever an accused has undergone preventive imprisonment for a
period equal to or more than the possible maximum imprisonment of the
offense charged to which he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to the

continuation of the trial thereof or the proceeding on appeal, if the same
is under review. In case the maximum penalty to which the accused may
be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment (As amended by E.O. No. 214, July 10, 1988).
771
VOL. 677, JULY 30, 2012 771

The OSG maintains that military commissions or

tribunals are not courts within the Philippine judicial
system, citing Olaguer, et al. v. Military Commission No.
4,30 hence, they are not expected to apply criminal law
concepts in their implementation and execution of decisions
involving the discipline of military personnel. This is
misleading. In Olaguer, the courts referred to were military
commissions created under martial law during the term of
former President Ferdinand Marcos and was declared
unconstitutional by this Court, while in the present case,
the General Court Martial which tried it, was created
under Commonwealth Act No. 408, as amended, and
remains a valid entity.
In Marcos v. Chief of Staff, Armed Forces of the
Philippines,31 this Court ruled that a court-martial case is
a criminal case and the General Court Martial is a „court‰
akin to any other courts. In the same case, this Court
clarified as to what constitutes the words „any court‰ used
in Section 1732 of the 1935 Constitution prohibiting
members of Congress to appear as counsel in any criminal
case in which an officer or employee of the Government is
accused of an offense committed in relation to his office.
This Court held:
„We are of the opinion and therefore hold that it is applicable,

because the words „any court‰ includes the General Court-
Martial, and a court-martial case is a criminal case within
_______________
30 G.R. Nos. L-54558 and L-69882, May 22, 1987, 150 SCRA 144.
31 89 Phil. 246 (1951).
32 Sec. 17. No Senator or Member of the House of Representatives shall

directly or indirectly be financially interested in any contract with the
Government or any subdivision or instrumentality thereof, or in any franchise
or special privilege granted by the Congress during his term of office. He shall
not appear as counsel before the Electoral Tribunals or before any court in any
civil case wherein the Government or any subdivision or instrumentality
thereof is the adverse party, or in any criminal case wherein an officer or
employee of the Government is accused of an offense committed in relation to
his office. x x x.
772

the meaning of the above quoted provisions of our

Constitution.
It is obvious that the words „any court,‰ used in prohibiting
members of Congress to appear as counsel „in any criminal case in
which an officer or employee of the Government is accused of an
offense committed in relation to his office,‰ refers, not only to a
civil, but also to a military court or a Court-Martial. Because,
in construing a Constitution, „it must be taken as established that
where words are used which have both a restricted and a general
meaning, the general must prevail over the restricted unless the
nature of the subject matter of the context clearly indicates that the
limited sense is intended.‰ (11 American Jurisprudence, pp. 680-
682).
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine
Army,* 43 Off. Gaz., 855, we did not hold that the word „court‰ in
general used in our Constitution does not include a Court-Martial;
what we held is that the words „inferior courts‰ used in connection
with the appellate jurisdiction of the Supreme Court to „review on
appeal certiorari or writ of error, as the law or rules of court may
provide, final judgments of inferior courts in all criminal cases in
which the penalty imposed is death or life imprisonment,‰ as
provided for in section 2, Article VIII, of the Constitution, do not
refer to Courts-Martial or Military Courts.
WinthropÊs Military Law and Precedents, quoted by the
petitioners and by this Court in the case of Ramon Ruffy, et al. vs.
Chief of Staff of the Philippine Army, supra, has to say in this
connection the following:
Notwithstanding that the court-martial is only an

instrumentality of the executive power having no relation or
connection, in law, with the judicial establishments of the
country, it is yet, so far as it is a court at all, and within its
field of action, as fully a court of law and justice as is any civil
tribunal. As a court of law, it is bound, like any court, by the
fundamental principles of law, and, in the absence of special
provision of the subject in the military code, it observes in
general the rules of evidence as adopted in the common-law
courts. As a court of justice, it is required by the terms of its
statutory oath, (art. 84.) to adjudicate between the U.S. and
the accused „without partiality, favor, or affection,‰ and
according, not only to the laws and customs of the service, but
to its „conscience,‰
773
VOL. 677, JULY 30, 2012 773

i.e. its sense of substantial right and justice unaffected by

technicalities. In the words of the Attorney General, court-
martial are thus, „in the strictest sense courts of
justice.‰ (WinthropÊs Military Law and Precedents, Vols. 1
and 2, 2nd Ed., p. 54.)
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425,
with approval, the court said:
In the language of Attorney General Cushing, a court-
martial is a lawful tribunal existing by the same
authority that any other exists by, and the law military
is a branch of law as valid as any other, and it differs
from the general law of the land in authority only in
this: that it applies to officers and soldiers of the army
but not to other members of the body politic, and that
it is limited to breaches of military duty.
And in re Davison, 21 F. 618, 620, it was held:
That court-martial are lawful tribunals existing by the same
authority as civil courts of the United States, have the same
plenary jurisdiction in offenses by the law military as the
latter courts have in controversies within their cognizance,
and in their special and more limited sphere are entitled to as
untrammelled an exercise of their powers.
And lastly, American Jurisprudence says:

SEC. 99. Representation by Counsel.·It is the general rule
that one accused of the crime has the right to be represented
before the court by counsel, and this is expressly so declared
by the statues controlling the procedure in court-martial. It
has been held that a constitutional provision extending that
right to one accused in any trial in any court whatever
applies to a court-martial and gives the accused the
undeniable right to defend by counsel, and that a court-
martial has no power to refuse an attorney the right to
appear before it if he is properly licensed to practice in the
courts of the state. (Citing the case of State ex rel Huffaker
vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American
Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal,
rendered by a court-martial must be approved by the
reviewing authority before it can be executed (Article of War
46),
774

does not change or affect the character of a court-martial as

a court. A judgment of the Court of First Instance imposing death
penalty must also be approved by the Supreme Court before it can
be executed.
That court-martial cases are criminal cases within the meaning
of Section 17, Article VI, of the Constitution is also evident, because
the crimes and misdemeanors forbidden or punished by the Articles
of War are offenses against the Republic of the Philippines.
According to section 1, Rule 106, of the Rules of Court, a criminal
action or case is one which involves a wrong or injury done to the
Republic, for the punishment of which the offender is prosecuted in
the name of the People of the Philippines; and pursuant to Article of
War 17, „the trial advocate of a general or special court-martial
shall prosecute (the accused) in the name of the People of the
Philippines.‰
Winthrop, in his well known work „Military Law and PrecedentsÊ
says the following:
In regard to the class of courts to which it belongs,
it is lastly to be noted that the court-martial is strictly

a criminal court. It has no civil jurisdiction whatever;
cannot enforce a contract, collect a debt, or award damages in
favor of an individual. . . . Its judgment is a criminal
sentence not a civil verdict; its proper function is to
award punishment upon the ascertainment of guilt.
(WinthropÊs Military Law and Precedents, Vols. 1 & 2, 2nd
Ed., p. 55.)
In N. Y. it was held that the term „criminal case,‰ used in
the clause, must be allowed some meaning, and none can be
conceived, other than a prosecution for a criminal offense. Ex
parte Carter. 66 S. W. 540, 544, 166 No. 604, 57 L.R.A. 654,
quoting People vs. Kelly, 24 N.Y. 74; Counselman vs.
Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words
and Phrases, Vol. 10, p. 485.)
Besides, that a court-martial is a court, and the
prosecution of an accused before it is a criminal and not an
administrative case, and therefore it would be, under
certain conditions, a bar to another prosecution of the
defendant for the same offense, because the latter would
place the accused in jeopardy, is shown by the decision of the
Supreme Court of the United States in the case of Grafton vs.
United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the
following was held:
775
VOL. 677, JULY 30, 2012 775

If a court-martial has jurisdiction to try an officer or soldier for a

crime, its judgment will be accorded the finality and conclusiveness
as to the issues involved which attend the judgments of a civil court
in a case of which it may legally take cognizance; x x x and
restricting our decision to the above question of double jeopardy, we
judge that, consistently with the above act of 1902, and for the
reasons stated, the plaintiff in error, a soldier in the Army, having
been acquitted of the crime of homicide, alleged to have been
committed by him in the Philippines, by a military court of
competent jurisdiction, proceeding under the authority of the
United States, could not be subsequently tried for the same offense
in a civil court exercising authority in that territory.‰33 (Emphasis
supplied.)
Hence, as extensively discussed above, the General

Court Martial is a court within the strictest sense of the
word and acts as a criminal court. On that premise, certain
provisions of the Revised Penal Code, insofar as those that
are not provided in the Articles of War and the Manual for
Courts-Martial, can be supplementary. Under Article 10 of
the Revised Penal Code:
„Art. 10. Offenses not subject to the provisions of this Code.·

Offenses which are or in the future may be punishable under
special laws are not subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the latter should
specially provide the contrary.‰
A special law is defined as a penal law which punishes

acts not defined and penalized by the Revised Penal
Code.34 In the present case, petitioner was charged with
and convicted of Conduct Unbecoming an Officer and
Gentleman (96th Article of War) and Violation of the 97th
Article of War, or Conduct Prejudicial to Good Order and
Military Discipline, both of which are not defined and
penalized under the Revised Penal Code. The
corresponding penalty imposed by the General
_______________
33 Marcos v. Chief of Staff, AFP, supra note 31, at pp. 248-251.
34 See U.S. v. Serapio, 23 Phil. 584, 593 (1912).
776

Court Martial, which is two (2) years of confinement at

hard labor is penal in nature. Therefore, absent any
provision as to the application of a criminal concept in the
implementation and execution of the General Court
MartialÊs decision, the provisions of the Revised Penal
Code, specifically Article 29 should be applied. In fact, the
deduction of petitionerÊs period of confinement to his
sentence has been recommended in the Staff Judge

Advocate Review, thus:
„x x x Recommend that the sentence be approved. The PNP

custodial facility in Camp Crame, Quezon City, is the appropriate
place of confinement. The period of confinement from 18
October 2004 shall be credited in his favor and deducted
from the two (2) years to which the accused was sentenced.
Thus, confinement will expire on 18 October 2006. Considering that
the period left not served is less than one (1) year, confinement at
the National Penitentiary is no longer appropriate.‰35 (Emphasis
supplied.)
The above was reiterated in the Action of the Reviewing

Authority, thus:
„In the foregoing General Court-Martial case of People of the

Philippines versus MGEN. CARLOS F. GARCIA 0-5820 AFP (now
Retired), the verdict of GUILTY is hereby approved.
The sentence to be dishonorably discharged from the service; to
forfeit all pay and allowances due and to become due; and to be
confined at hard labor at such place as the reviewing authority may
direct for a period of two (2) years is also approved.
Considering that the Accused has been in confinement
since 18 October 2004, the entire period of his confinement
since 18 October 2004 will be credited in his favor.
Consequently, his two (2) year sentence of confinement will expire
on 18 October 2006.
The proper place of confinement during the remaining unserved
portion of his sentence is an official military detention facility.
However, the Accused is presently undergoing trial before the
_______________
35 Rollo, p. 98.
777
VOL. 677, JULY 30, 2012 777

Sandiganbayan which has directed that custody over him be turned

over to the civilian authority and that he be confined in a civilian
jail or detention facility pending the disposition of the case(s) before
said Court. For this reason, the Accused shall remain confined at
the PNPÊs detention facility in Camp Crame, Quezon City. The
Armed Forces of the Philippines defers to the civilian authority on
this matter.
Should the Accused be released from confinement upon lawful
orders by the Sandiganbayan before the expiration of his sentence
adjudged by the military court, the Provost Marshal General shall
immediately take custody over the Accused, who shall be
transferred to and serve the remaining unserved portion thereof at
the ISAFP detention facility in Camp General Emilio Aguinaldo,
Quezon City.‰36 (Emphasis supplied.)
Nevertheless, the application of Article 29 of the Revised

Penal Code in the Articles of War is in accordance with the
Equal Protection Clause of the 1987 Constitution.
According to a long line of decisions, equal protection
simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred
and responsibilities imposed.37 It requires public bodies
and institutions to treat similarly situated individuals in a
similar manner.38 The purpose of the equal protection
clause is to secure every person within a stateÊs jurisdiction
against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its
improper execution through the stateÊs duly-constituted
authorities.39 In other words, the concept of equal justice
under the law requires the state to govern impartially,
_______________
36 Rollo, p. 100.
37 Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta,
G.R. No. L-59431, July 25, 1984, 130 SCRA 654; Association of Small
Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. No.
7842, July 14, 1989, 175 SCRA 343, 375.
38 Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995), cited in Am. Jur.
2d, Vol. 16 (b), p. 302.
39 Edward Valves, Inc. v. Wake Country, 343 N.C. 426, cited in Am.
Jur. 2d, Vol. 16 (b), p. 303.
778
and it may not draw distinctions between individuals solely

on differences that are irrelevant to a legitimate
governmental objective.40 It, however, does not require the
universal application of the laws to all persons or things
without distinction. What it simply requires is equality
among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must
pass the test of reasonableness. The test has four
requisites: (1) the classification rests on substantial
distinctions; (2) it is germane to the purpose of the law; (3)
it is not limited to existing conditions only; and (4) it
applies equally to all members of the same class.41
„Superficial differences do not make for a valid
classification.‰42 In the present case, petitioner belongs to
the class of those who have been convicted by any court,
thus, he is entitled to the rights accorded to them. Clearly,
there is no substantial distinction between those who are
convicted of offenses which are criminal in nature under
military courts and the civil courts. Furthermore, following
the same reasoning, petitioner is also entitled to the basic
and time-honored principle that penal statutes are
construed strictly against the State and liberally in favor of
the accused.43 It must be remembered that the provisions
of the Articles of War which the petitioner violated are
penal in nature.
The OSG is correct when it argued that the power to
confirm a sentence of the President, as Commander-in-
Chief, includes the power to approve or disapprove the
entire or any
_______________
40 Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b),
p. 303.
41 Beltran v. Secretary of Health, 512 Phil. 560, 583; 476 SCRA 168,
194 (2005).
42 Cruz, Constitutional Law, 2003 ed., p. 128.
43 People v. Temporada, G.R. No. 173473, December 17, 2008, 574
SCRA 258, 303, citing People v. Ladjaalam, 395 Phil. 1, 35; 340 SCRA
617, 649 (2000).
779
VOL. 677, JULY 30, 2012 779

part of the sentence given by the court martial. As provided

in Article 48 of the Articles of War:
„Article 48. Power Incident to Power to Confirm.·The power to

confirm the sentence of a court-martial shall be held to include:
(a) The power to confirm or disapprove a finding, and to
confirm so much only of a finding of guilty of a particular
offense as involves a finding of guilty of a lesser included
offense when, in the opinion of the authority having power to
confirm, the evidence of record requires a finding of only the
lesser degree of guilt;
(b) The power to confirm or disapprove the whole or
any part of the sentence; and
(c) The power to remand a case for rehearing, under the
provisions of Article 50.‰ (Emphasis supplied.)
In addition, the President also has the power to mitigate

or remit a sentence. Under Article 49 of the Articles of War:
„Article 49. Mitigation or Remission of Sentence.·The power to

order the execution of the sentence adjudged by a court-martial
shall be held to include, inter alia, the power to mitigate or remit
the whole or any part of the sentence.
Any unexpected portion of a sentence adjudged by a court-
martial may be mitigated or remitted by the military authority
competent to appoint, for the command, exclusive of penitentiaries
and Disciplinary Barracks of the Armed Forces of the Philippines or
Philippine Constabulary, in which the person under sentence is
held, a court of the kind that imposed the sentence, and the same
power may be exercised by superior military authority; but no
sentence approved or confirmed by the President shall be remitted
or mitigated by any other authority, and no approved sentence of
loss of files by an officer shall be remitted or mitigated by any
authority inferior to the President, except as provided in Article 52.
When empowered by the President to do so, the commanding
general of the Army in the field or the area commander may
approve or confirm and commute (but not approve or confirm
without commuting), mitigate, or remit and then order executed as

commuted, mitigated, or remitted any sentence which under those
Articles
780

requires the confirmation of the President before the same may be

executed.‰ (As amended by Republic Act No. 242).
Thus, the power of the President to confirm, mitigate

and remit a sentence of erring military personnel is a clear
recognition of the superiority of civilian authority over the
military. However, although the law (Articles of War) which
conferred those powers to the President is silent as to the
deduction of the period of preventive confinement to the
penalty imposed, as discussed earlier, such is also the right
of an accused provided for by Article 29 of the RPC.
As to petitionerÊs contention that his right to a speedy
disposition of his case was violated, this Court finds the
same to be without merit.
No less than our Constitution guarantees the right not
just to a speedy trial but to the speedy disposition of
cases.44 However, it needs to be underscored that speedy
disposition is a relative and flexible concept. A mere
mathematical reckoning of the time involved is not
sufficient. Particular regard must be taken of the facts and
circumstances peculiar to each case.45 In determining
whether or not the right to the speedy disposition of cases
has been violated, this Court has laid down the following
guidelines: (1) the length of the delay; (2) the reasons for
such delay; (3) the assertion or failure to assert such right
by the accused; and (4) the prejudice caused by the delay.46
_______________
44 Constitution, Art. III, Sec. 16:
All persons shall have the right to a speedy disposition of their cases
before all judicial, quasi- judicial or administrative bodies.
45 Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, 561
SCRA 135, 138-139, citing Binay v. Sandiganbayan, G.R. Nos. 120681-
83, October 1, 1999, 316 SCRA 65, 93.

46 Dela Peña v. Sandiganbayan, G.R. No. 144542, June 29, 2001, 360
SCRA 478, 485; Alvizo v. Sandiganbayan, G.R. No. 101689, March 17,
1993, 220 SCRA 55, 63-64.
781
VOL. 677, JULY 30, 2012 781

In this case, there was no allegation, whatsoever of any

delay during the trial. What is being questioned by
petitioner is the delay in the confirmation of sentence by
the President. Basically, the case has already been decided
by the General Court Martial and has also been reviewed
by the proper reviewing authorities without any delay. The
only thing missing then was the confirmation of sentence
by the President. The records do not show that, in those six
(6) years from the time the decision of the General Court
Martial was promulgated until the sentence was finally
confirmed by the President, petitioner took any positive
action to assert his right to a speedy disposition of his case.
This is akin to what happened in Guerrero v. Court of
Appeals,47 where, in spite of the lapse of more than ten
years of delay, the Court still held that the petitioner could
not rightfully complain of delay violative of his right to
speedy trial or disposition of his case, since he was part of
the reason for the failure of his case to move on towards its
ultimate resolution. The Court held, inter alia:
„In the case before us, the petitioner merely sat and waited after
the case was submitted for resolution in 1979. It was only in 1989
when the case below was reraffled from the RTC of Caloocan City to
the RTC of Navotas-Malabon and only after respondent trial judge
of the latter court ordered on March 14, 1990 the parties to follow-
up and complete the transcript of stenographic notes that matters
started to get moving towards a resolution of the case. More
importantly, it was only after the new trial judge reset the retaking
of the testimonies to November 9, 1990 because of petitionerÊs
absence during the original setting on October 24, 1990 that the
accused suddenly became zealous of safeguarding his right to
speedy trial and disposition.
xxxx
In the present case, there is no question that petitioner raised
the violation against his own right to speedy disposition only when
the respondent trial judge reset the case for rehearing. It is fair to
assume that he would have just continued to sleep on his right·a
_______________
47 G.R. No. 107211, June 28, 1996, 257 SCRA 703.
782

situation amounting to laches·had the respondent judge not taken

the initiative of determining the non-completion of the records and
of ordering the remedy precisely so he could dispose of the case. The
matter could have taken a different dimension if during all those
ten years between 1979 when accused filed his memorandum and
1989 when the case was reraffled, the accused showed signs of
asserting his right which was granted him in 1987 when the new
constitution took effect, or at least made some overt act (like a
motion for early disposition or a motion to compel the stenographer
to transcribe stenographic notes) that he was not waiving it. As it
is, his silence would have to be interpreted as a waiver of such
right.
While this Court recognizes the right to speedy disposition quite
distinctly from the right to a speedy trial, and although this Court
has always zealously espoused protection from oppressive and
vexatious delays not attributable to the party involved, at the same
time, we hold that a partyÊs individual rights should not work
against and preclude the peopleÊs equally important right to public
justice. In the instant case, three people died as a result of the crash
of the airplane that the accused was flying. It appears to us that the
delay in the disposition of the case prejudiced not just the accused
but the people as well. Since the accused has completely failed to
assert his right seasonably and inasmuch as the respondent judge
was not in a position to dispose of the case on the merits due to the
absence of factual basis, we hold it proper and equitable to give the
parties fair opportunity to obtain (and the court to dispense)
substantial justice in the premises.‰48
Time runs against the slothful and those who neglect

their rights.49 In fact, the delay in the confirmation of his
sentence was to his own advantage, because without the
confirmation from the President, his sentence cannot be
served.
Anent petitionerÊs other arguments, the same are
already rendered moot and academic due to the above
discussions.
Grave abuse of discretion means such capricious and
whimsical exercise of judgment as is equivalent to lack of
_______________
48 Id., at pp. 714-716.
49 See Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA
532, 560.
783
VOL. 677, JULY 30, 2012 783

jurisdiction. Mere abuse of discretion is not enough. It must

be grave abuse of discretion, as when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.50 Thus, applying, the earlier
disquisitions, this Court finds that the Office of the
President did not commit any grave abuse of discretion in
issuing the Confirmation of Sentence in question.
WHEREFORE, the Petition for Certiorari dated
September 29, 2011 of Major General Carlos F. Garcia, AFP
(Ret.) is hereby DISMISSED. However, applying the
provisions of Article 29 of the Revised Penal Code, the time
within which the petitioner was under preventive
confinement should be credited to the sentence confirmed
by the Office of the President, subject to the conditions set
forth by the same law.
SO ORDERED.
Velasco, Jr. (Chairperson), Abad, Sereno** and Perlas-

Bernabe, JJ., concur.
Petition dismissed.
Note.·The equal protection of the laws is embraced in

the concept of due process, as every unfair discrimination
offends the requirements of justice and fair play. (Biraogo
vs. Philippine Truth Commission of 2010, 637 SCRA 78
[2010])
··o0o··
_______________
50 Barbieto v. Court of Appeals, G.R. No. 184645, October 30, 2009,
604 SCRA 825, 840-841, citing Neri v. Senate Committee on
Accountability of Public Officers and Investigations, Senate Committee on
Trade and Commerce, and Senate Committee on National Defense and
Security, G.R. No. 180643, March 25, 2008, 549 SCRA 77, 131.
** Designated Acting Member in lieu of Associate Justice Jose Catral
Mendoza, per Special Order No. 1271 dated July 24, 2012.
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SUPREME COURT REPORTS ANNOTATED VOLUME 677 9/23/21, 8:18 PM

G.R. No. 198554. July 30, 2012.*

Criminal Procedure; Jurisdiction; Well-settled is the rule that

VOL. 677, JULY 30, 2012 751

Garcia vs. Executive Secretary

Same; Same; Courts; Courts Martial; A court-martial case is a

752 SUPREME COURT REPORTS ANNOTATED

Garcia vs. Executive Secretary

equal protection simply requires that all persons or things similarly

SPECIAL CIVIL ACTION in the Supreme Court.

VOL. 677, JULY 30, 2012 753

Garcia vs. Executive Secretary

„1. Pursuant to Article of War 70 and the directive of the Acting

Thereafter, a Charge Sheet dated October 27, 2004 was

„CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR

754 SUPREME COURT REPORTS ANNOTATED

all his existing assets in his Sworn Statement of Assets and

RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming

VOL. 677, JULY 30, 2012 755

SPECIFICATION 3: In that MAJOR GENERAL CARLOS

Petitioner, upon arraignment on November 16, 2004,

756 SUPREME COURT REPORTS ANNOTATED

Aguinaldo to the ISAFP Detention Center. On the same

„MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in

VOL. 677, JULY 30, 2012 757

Afterwards, in a document6 dated March 27, 2006, the

758 SUPREME COURT REPORTS ANNOTATED

pines, dollar and peso deposits with Allied Banking Corporation,

In an undated document,7 the AFP Board of Military

A. Only so much of the sentence as provides for the mandatory

VOL. 677, JULY 30, 2012 759

After six (6) years and two (2) months of preventive

„NOW, THEREFORE, I, BENIGNO S. AQUINO III, the

Consequently, on September 15, 2011, respondent

760 SUPREME COURT REPORTS ANNOTATED

People of the Philippines Versus Major General Carlos

VOL. 677, JULY 30, 2012 761

PETITIONERÊS ARREST AND CONFINEMENT IS ILLEGAL,

DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS

In view of the earlier resolution of this Court denying

762 SUPREME COURT REPORTS ANNOTATED

COMMANDER-IN-CHIEF OF THE AFP.

Petitioner, in his Reply18 dated January 20, 2012,

VOL. 677, JULY 30, 2012 763

BRANCH. THEREFORE, THE HONORABLE COURT IS THE

SEVERED HIS „JURAL RELATIONSHIP‰ WITH THE MILITARY,

Petitioner raises the issue of the jurisdiction of the

764 SUPREME COURT REPORTS ANNOTATED

Article 2 of the Articles of War20 circumscribes the

„Art. 2. Persons Subject to Military Law.·The following persons

Armed Forces of the Philippines or of the Philippine

It is indisputable that petitioner was an officer in the

VOL. 677, JULY 30, 2012 765

the parties but continues until the case is terminated.21

„This point was settled against Gen. GudaniÊs position in

Abadilla v. Ramos, where the Court declared that an officer

766 SUPREME COURT REPORTS ANNOTATED

term. In such cases the interests of discipline clearly forbid